No. 15447310W Ex Rect , Raushan ... vs The Armed Forces Tribunal ...
2023 Latest Caselaw 27570 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


A.F.R.
 
Neutral Citation No. - 2023:AHC-LKO:65518-DB
 
Court No. - 1
 
Case :- WRIT - A No. - 7699 of 2023
 
Petitioner :- No. 15447310w Ex Rect , Raushan Kumar Singh
 
Respondent :- The Armed Forces Tribunal Regional Bench Lko. And Others
 
Counsel for Petitioner :- Anshuman Srivastava,Manoj Kumar Awasthi,Mohd. Murtaza Hasan
 
Counsel for Respondent :- A.S.G.I.
 

 
Hon'ble Attau Rahman Masoodi, J.

Hon'ble Om Prakash Shukla, J.

(Per Om Prakash Shukla, J.)

(1) The challenge in the instant writ petition under Article 226 of the Constitution of India is to an order passed by the Armed Forces Tribunal, Regional Bench, Lucknow (hereinafter referred to as 'Tribunal') on July 01, 2021 whereby, Original Application No. 164 of 2019 filed by the applicant/petitioner arising out of letters dated 27.02.2016 and 19.01.2018 rejecting his claim for grant of disability pension, was dismissed.

(2) Succinctly, the facts of the case are that the applicant/petitioner was enrolled in the Indian Army on April 28, 2014. On November 18, 2014, the Invaliding Medical Board (hereinafter referred to as 'Board') found the petitioner to be suffering from 'Primary Generalised Epilepsy', which disability was assessed at 20% for life. The opinion of the Board was that disability was 'neither attributable to nor aggravated' (NANA) by military service and consequently, the petitioner was invalidated out/discharged from army service on January 01, 2015. The assessment of disability pension of the petitioner was also adjudicated and it was opined by the competent authority after assessment that the net assessment qualifying for disability pension assessed as Nil for life. This decision of the competent authority for non-qualify of the disability pension of the petitioner was communicated to him vide letter dated 27.02.2016.

(3) Feeling aggrieved by the aforesaid order of discharge dated January 01, 2015, the petitioner had filed an appeal dated 29.01.2015, which was rejected vide order dated 23.06.2015. Thereafter, the petitioner had filed Original Application No. 332 of 2015 before the Tribunal, seeking to reinstate him in service along with seniority and consequent benefits including arrears of salary and continuity in service. Vide judgment/order 07.04.2017, the learned Tribunal dismissed the said original application.

(4) Moreover, against the decision of rejection of disability pension dated 27.02.2016, the petitioner had filed appeal dated 28.08.2017, which was examined and rejected by the competent authority and the same was also communicated to the petitioner vide letter dated 19.01.2018.

(5) Against the rejection of the claim of the petitioner to grant him disability pension vide letters dated 27.02.2016 and 19.01.2018, he had filed Original Application No. 164 of 2019 before the Tribunal. The learned Tribunal, vide judgment/order dated July 01, 2021, dismissed the said original application. It is this order dated July 01, 2021, which has been challenged in this writ petition.

(6) Heard Shri Anshuman Srivastava, learned Counsel representing the petitioner and Shri S.B. Pandey, learned Senior Advocate/Deputy Solicitor General of India, assisted by Shri Varun Pandey, representing the Union of India/respondents no. 2 to 5.

(7) Learned Counsel representing the petitioner has submitted that the declaration of the Release Medical Board that the disease of the petitioner was "neither attributable to nor aggravated by service" was arbitrary and illegal as the Board had not scrupulously followed the Regulations and decided the case in clear violation of the rules framed thereunder. The assessment of disability for attributability is to be ascertained in accordance with Regulation No. 153 of the Regulations for Medical Services Armed Forces, 1983 (hereinafter referred to as 'Regulations, 1983') and Rules 5, 14(b), 14(c) and 15 of Entitlement Rules for Casualty Pensionary Awards, 1982 (hereinafter referred to as 'Entitlement Rules') prescribed under Appendix-II coupled with the rules specified in Annexure-III to Appendix-II. According to the learned. Counsel, the Board flouted all the relevant rules and regulations and arbitrarily decided the case of the petitioner as it ignored the vital fact that the petitioner was enrolled in the Indian Army on 28.04.2014 after medically and physically found fit by the medical officers at the time of recruitment. According to him, the onset of disability was on 18.11.2014 which is after rendering more than eight months of service. During his service, the petitioner was posted at Lucknow where he had to carry on his duties under lot of stress and strain. He further submitted that as per Rules 9, 5(b) and 14(b) of the Entitlement Rules, the Board ought to have given specific findings in its report as to why disability is not deemed to be attributable to service, particularly when the petitioner was not affected with any disease at the time of his enrollment in the Indian Army. In the absence of such specific findings by the Board, merely furnishing a declaration that the disability being constitutional in nature was neither attributable to nor aggravated by service, cannot be accepted and the claim of the petitioner for disability pension cannot be rejected.

(8) Learned Counsel for the petitioner has also contended that although the Release Medical Board is an expert body, the adjudicating authority has the power and jurisdiction to interfere and decide the correctness or otherwise of the opinion given by the expert body. The Court cannot be expected to adhere to the opinion of the expert body. Moreover, in terms of Regulation 423 (a) of Regulations, 1983, for the purpose of determining whether the cause of a disability or death is or is not attributable to service, it is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a field service/active service area or under normal peace conditions. The Tribunal has not considered the aforesaid aspect of the matter and has erred in dismissing the original application filed by the petitioner.

(9) Per contra, learned Counsel representing the Union of India has vehemently opposed the aforesaid submissions of the learned Counsel for the petitioner and while supporting the impugned judgment/order, he has argued that the Board, which is an expert body, has clearly expressed its opinion that the disabilities suffered by the petitioner were neither attributable to nor aggravated by service and constitutional in nature. The record clearly shows that the onset of disabilities on the petitioner was at peace location as the petitioner, at the relevant time, was not engaged in duty in high altitude areas or snow bound remote areas nor he was in war bound field area or undergoing intensive physical or arms training nor he was a prisoner of war nor exposed to adverse climatic conditions while performing his duties. Throughout his employment, the petitioner has served in peace station. Therefore, there cannot be any stress or strain caused by the service which could have led to the onset of the disabilities. The Medical Board has clearly and categorically observed that the disabilities of the respondent were "not connected with service" and hence they do not fall under the category of "either attributable to or aggravated by army service" which is a prerequisite for granting disability pension. The adjudicating authority as well as the appellate authorities correctly upheld the recommendations of the Board and rightly denied disability pension to the petitioner. The Tribunal in the present case came to the right conclusion only after giving its thoughtful consideration to the opinion given by the Board in the light of true legal norms and prescribed rules and regulations and hence the impugned order need not be interfered with by this Court.

(10) Having heard the submissions advanced by the learned Counsel for the parties and going through the record available before this Court in the instant writ petition, it is required to be noted herein that the petitioner at the time of his enrollment into the employment of Indian Army on 28.04.2014, he was medically and physically examined and was found fit as per prescribed medical standards. The record available before us in the instant writ petition also shows that the petitioner was suffering from 'Primary Generalised Epilepsy'. The Medical Board assessed the disability of the petitioner to be 20% for life. The Pension Regulations for the Army, 1961 (hereinafter referred to as 'Pension Regulations, 1961') have specified the circumstances under which disability pension could be granted to a person. Regulation 173 of Pension Regulations, 1961 is relevant for the purpose, which reads as under :-

"Primary conditions for the grant of disability pension

173. Unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalidated out of service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed 20 per cent or over.

The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II."

(11) A bare perusal of the Regulation 173 of Pension Regulations, 1961 reveals that disability pension in normal course is to be granted to an individual (i) who is invalidated out of service on account of a disability which is attributable to or aggravated by military service and (ii) who is assessed at 20% or over disability unless otherwise it is specifically provided.

(12) Rule 4 of the Entitlement Rules makes it clear that invalidating from service is a necessary condition for grant of disability pension. An individual who, at the time of his release under the Release Regulations, is in a lower medical category than that in which he was recruited will be treated as "invalidated from service". For the purpose of evaluation of disabilities, two presumptions are provided under Rule 5 of the Entitlement Rules, which is extracted as under :-

"5. The approach to the question of entitlement to casualty pensionary awards and evaluation of disabilities shall be based on the following presumptions:

Prior to and during service

(a) A member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance.

(b) In the event of his subsequently being discharged from service on medical grounds any deterioration in his health, which has taken place, is due to service."

(13) Rule 9 of the Entitlement Rules mandates upon whom the burden lies to prove the entitlement conditions, which reads as under :-

"9. Onus of proof.-The claimant shall not be called upon to prove the conditions of entitlements. He/she will receive the benefit of any reasonable doubt. This benefit will be given more liberally to the claimants in field/afloat service cases."

(14) While considering the aspect of 'onus of proof', the Apex Court in Dharamvir Singh Vs. Union of India & Ors. (2013) 7 SCC 316, has observed as under :-

"The onus of proof is not on the claimant (employee), the corollary is that onus of proof that the condition for non-entitlement is with the employer. A claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more liberally".

(15) Rule 14 of the Entitlement Rules stipulates how to determine whether a disease shall be deemed to have arisen in service or not. Rule 14 of the Entitlement Rules is extracted hereinbelow :-

"14. Diseases - In respect of diseases, the following rule will be observed -

(a) Cases in which it is established that conditions of military service did not determine or contribute to the onset of the disease but influenced the subsequent courses of the disease will fall for acceptance on the basis of aggravation.

(b) A disease which has led to an individual's discharge or death will ordinarily be deemed to have arisen in service, if no note of it was made at the time of the individual's acceptance for military service. However, if medical opinion holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service.

(c) If a disease is accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service."

(16) A plain reading of sub-rule (b) of Rule 14 of the Entitlement Rules makes it abundantly clear that a disease, which has led to an individual's discharge or death, will ordinarily be deemed to have arisen in service, if no note of it was made at the time of the individual's acceptance for military service. However, if medical opinion holds that the disease could not have been detected at the time of enrollment, the disease will not be deemed to have arisen during service. In such a situation, it is also important that the medical opinion must contain valid reasons that the disease is not attributable to service.

(17) The Rule 14 of the Entitlement Rules, as reproduced above, was amended vide Government of India, Ministry of Defence letter No. 1(1)/81/D(Pen-C) dated 20th June, 1996. The amended Clauses read as under −

"Rule 14 (a)- For acceptance of a disease as attributable to military service, the following two conditions must be satisfied simultaneously:

(i) That the disease has arisen during the period of military service, and

(ii) That the disease has been caused by the conditions of employment in military service.

(b) If medical authority holds, for reasons to be stated, that the disease although present at the time of enrolment could not have been detected on medical examination prior to acceptance for service, the disease, will not be deemed to have arisen during service. In case where it is established that the military service did not contribute to the onset or adversely affect the course disease, entitlement for casualty pensionary award will not be conceded even if the disease has arisen during service.

(c) Cases in which it is established that conditions of military service did not determine or contribute to the onset of the disease but, influenced the subsequent course of the disease, will fall for acceptance on the basis of aggravation.

(d) In case of congenital, hereditary, degenerative and constitutional diseases which are detected after the individual has joined service, entitlement to disability pension shall not be conceded unless it is clearly established that the course of such disease was adversely affected due to factors related to conditions of military services."

(18) In Union of India & Anr. v. Rajbir Singh : (2015) 12 SCC 264, the Apex Court has held that the respondents having been discharged from service on account of medical disease/disability, the disability must be presumed to have been arisen in the course of service which must, in the absence of any reason recorded by the Medical Board, be presumed to have been attributable to or aggravated by military service. There is initial presumption that the respondents were all physically fit and free from any disease and in sound physical and mental condition at the time of their entry into service.

(19) In Veer Pal Singh v. Secretary, Ministry of Defence : (2013) 8 SCC 83, the Apex Court has rejected the opinion of invaliding Medical Board but directed the respondents to refer the case to Review Medical Board to reassess the medical condition of the appellant and to find out whether at the time of discharge from service, he was suffering from disease which made him unfit to continue in service. In the said case, the appellant was appointed in the year 1972 and was discharged in view of the opinion of the invaliding Medical Board dated November 14, 1977. The appellant has prayed for constitution of a fresh Medical Board to assess his disease and disability in a writ petition filed before the Allahabad High Court. The Apex Court held as under :-

"10. Although, the courts are extremely loath to interfere with the opinion of the experts, there is nothing like exclusion of judicial review of the decision taken on the basis of such opinion. What needs to be emphasised is that the opinion of the experts deserves respect and not worship and the courts and other judicial/quasi-judicial forums entrusted with the task of deciding the disputes relating to premature release/discharge from the army cannot, in each and every case, refuse to examine the record of the Medical Board for determining whether or not the conclusion reached by it is legally sustainable.

xx xx xx

16. F.C. Redlich and Daniel X. Freedman in their book titled The Theory and Practice of Psychiatry (1966 Edn.) observed: "Some schizophrenic reactions, which we call psychoses, may be relatively mild and transient; others may not interfere too seriously with many aspects of everyday living.... (p. 252) Are the characteristic remissions and relapses expressions of endogenous processes, or are they responses to psychosocial variables, or both? Some patients recover, apparently completely, when such recovery occurs without treatment we speak of spontaneous remission. The term need not imply an independent endogenous process; it is just as likely that the spontaneous remission is a response to non-deliberate but nonetheless favourable psychosocial stimuli other than specific therapeutic activity...."

(emphasis supplied)

18. In Controller of Defence Accounts (Pension) v. S. Balachandran Nair [(2005) 13 SCC 128 : 2006 SCC (L&S) 734] on which reliance has been placed by the Tribunal, this Court referred to Regulations 173 and 423 of the Pension Regulations and held that the definite opinion formed by the Medical Board that the disease suffered by the respondent was constitutional and was not attributable to military service was binding and the High Court was not justified in directing payment of disability pension to the respondent. The same view was reiterated in Ministry of Defence v. A.V. Damodaran [(2009) 9 SCC 140: (2009) 2 SCC (L&S) 586] . However, in neither of those cases, this Court was called upon to consider a situation where the Medical Board had entirely relied upon an inchoate opinion expressed by the psychiatrist and no effort was made to consider the improvement made in the degree of illness after the treatment.

19. As a corollary to the above discussion, we hold that the impugned order as also the orders dated 14-7-2011 and 16-9-2011 passed by the Tribunal are legally unsustainable. In the result, the appeal is allowed. The orders passed by the Tribunal are set aside and the respondents are directed to refer the case to the Review Medical Board for reassessing the medical condition of the appellant and find out whether at the time of discharge from service he was suffering from a disease which made him unfit to continue in service and whether he would be entitled to disability pension."

(20) The Apex Court in Ex. Cfn Narsingh Yadav Vs. Union of India & others (Civil Appeal No. 7672 of 2019, decided on 03.10.2019), which has been relied by the learned Tribunal, has also considered Dharamvir Singh (supra), Rajbir Singh (supra), Ex. Gnr. Laxmanram Poonia (Dead) through Legal Representatives v. Union of India & Ors : (2017) 4 SCC 697 and has held that mental disorders cannot be detected at the time of recruitment and their subsequent manifestation (in this case after about three years of service) does not entitle a person for disability unless there are very valid reasons and strong medical evidence to dispute the opinion of Medical Board. The relevant part of the judgment is reproduced as under :-

"15) We find that it is not mechanical application of the principle that any disorder not mentioned at the time of enrolment is presumed to be attributed to or aggravated by military service. The question is as to whether the person was posted in harsh and adverse conditions which led to mental imbalance.

16) Annexure I to Chapter IV of the Guide to Medical Officers (Military Pensions), 2002 -- "Entitlement: General Principles" points out that certain diseases which may be undetectable by physical examination on enrolment including the Mental Disorders; Epilepsy and Relapsing forms of mental disorders which have intervals of normality, unless adequate history is given at the time by the member. The Entitlement Rules itself provide that certain diseases ordinarily escape detection including Epilepsy and Mental Disorder, therefore, we are unable to agree that mere fact that Schizophrenia, a mental disorder was not noticed at the time of enrolment will lead to presumption that the disease was aggravated or attributable to military service.

17) The 1982 Rules classify the diseases which are affected by climatic conditions, stress and strain and dietary complications. The stress and strain cause the following injuries as per the said classification of diseases: "(a) Psychosis and psychoneurosis. (b) Bronchial Asthma. (c) Myocardial infarction, and other forms of IHD. (d) Peptic ulcer."

18) Therefore, each case has to be examined whether the duties assigned to the individual may have led to stress and strain leading to Psychosis and psychoneurosis. Relapsing forms of mental disorders which have intervals of normality and Epilepsy are undetectable diseases while carrying out physical examination on enrolment, unless adequate history is given at the time by the member.

19) The appellant was a young boy of 18 years at the time of enrolment and had been boarded within 3½ years of his service. Even if he was suffering from any mental disorder prior to enrolment, the same could not be detected as there were intervals of normality. The appellant was posted in peace station as a Vehicle Mechanic. Neither the nature of job nor the place of posting was such which could have caused stress and strain leading to disability as attributed to or aggravated by military service.

20) In the present case, clause 14(d), as amended in the year 1996 and reproduced above, would be applicable as entitlement to disability pension shall not be considered unless it is clearly established that the cause of such disease was adversely affected due to factors related to conditions of military service. Though, the provision of grant of disability pension is a beneficial provision but, mental disorder at the time of recruitment cannot normally be detected when a person behaves normally. Since there is a possibility of non-detection of mental disorder, therefore, it cannot be said that Schizophrenia is presumed to be attributed to or aggravated by military service.

21) Though, the opinion of the Medical Board is subject to judicial review but the Courts are not possessed of expertise to dispute such report unless there is strong medical evidence on record to dispute the opinion of the Medical Board which may warrant the constitution of the Review Medical Board. The invaliding Medical Board has categorically held that the appellant is not fit for further service and there is no material on record to doubt the correctness of the Report of the invaliding Medical Board."

(Emphasis supplied)

(21) Here in the case on hand, the petitioner was enrolled as recruit in the Indian Army on 28.04.2014. Annexure-4 to the writ petition is the Medical Board Proceedings, which shows that he was posted at Unit No.2 MT Bn., AMC C & C Lucknow from 28.04.2014 till the time, he was produced before the Invaliding Medical Board and the place of posting of the petitioner was the peace station. In respect of disease, the petitioner declared that he was treated, firstly, at Base Hospital, Lucknow w.e.f. 13.08.2014 to 08.11.2014 wherein it was opined by the Medical Board on 08.11.2014 that the petitioner was suffering from 'Primary Generalised Epilepsy' and thereafter, he was referred to and treated at Command Hospital, Lucknow, till the time, he was examined by the invaliding Medical Board. In Part I of the Personal Statement, the Question asked was to "4. Give details of any incidents during your service which you think caused or made your disability". The answer given by the petitioner was 'NIL'. It transpires that the petitioner had refused to sign Part-I. In Part III of the Report, the Commanding Officer answered 'No' to the question - "5. Did the Duties involve Severe/ exceptional stress and strain ?".

(22) At this juncture, it would be apt to note the opinion of the Graded Specialist in Medical & Neurology of Command Hospital, Lucknow dated 06.09.2014, which is as under :-

"This 19 year old recruit had three episodes of generalized seizures within one month of which one is witnessed by medical officer. His neroimaging is normal but sleep deprived EEG is abnormal. He will require anti-epileptic drug therapy for at least three years. He is unlikely to withstand the stress of training and is unlikely to serve as a fit soldier."

(23) The Medical Board, after examining the medical record of the petitioner as well as the opinion of Graded Specialist in Medical & Neurology of Command Hospital, Lucknow, concluded that the disability of the petitioner is neither attributed to army service nor aggravated by military service though it assessed the disability at 20% for life. Such opinion of the Medical Board dated 18.11.2014 is the basis of the discharge of the petitioner.

(24) Considering the facts and circumstances of the case in the light of above discussed Rules and Regulations as well as settled principles of law enshrined by the Apex Court in Ex. Cfn. Narsingh Yadav (supra), we are of the considered opinion that no doubt the Entitlement Rules are beneficial in nature and ought to be liberally construed, however, there has to be a reasonable causal connection between the injuries resulting in disability and the military service. In the present case, undisputed facts evolve that there is no connection between the disability and the military service and as such the Tribunal had not committed any error in dismissing the claim of the petitioner to award him disability pension vide impugned judgment/order.

(25) The writ petition being bereft of merit is, accordingly, dismissed. However, there shall be no order as to costs

(Om Prakash Shukla, J.) (Attau Rahman Masoodi, J.)

Order Date :- 9.10.2023

Ajit/-